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holding that Lowery required remand because "the measure of damages in an Alabama wrongful death claim is not the value of human life but rather the wrongfulness of the defendant's conduct" and "[t]here is no evidence of Defendant's culpability before the Court"
Summary of this case from Roe v. Michelin North America, Inc.Opinion
Case No. 3:08-cv-402-MEF.
January 6, 2009.
Benjamin E. Baker, Jr., Beasley Allen Crown Methvin Portis Miles PC, Montgomery, AL, for Plaintiff.
Carrie Meade Hartfield, Joel Chandler Bailey, II, John Banks Sewell, III, Natasha Lynke Wilson, Lightfoot Franklin White LLC, Birmingham, AL, for Defendants.
MEMORANDUM OPINION AND ORDER
This cause is before the Court on Plaintiff's Motion to Remand (Doc. #10) filed on June 16, 2008. This lawsuit was originally filed in the Circuit Court of Macon County, Alabama. Defendant Paccar, Inc. ("Defendant") removed this case to this Court pursuant to 28 U.S.C. § 1332(a) under diversity jurisdiction theory. Plaintiff Stephen Thiboxeaux ("Plaintiff") filed a motion to remand, arguing that the amount in controversy requirement of 28 U.S.C. § 1332(a) was not satisfied. For the reasons set forth in this Memorandum Opinion and Order, the Court finds that the Motion to remand is due to be GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
This is a product liability case arising out of a motor vehicle accident in Macon County, Alabama on November 23, 2007, which claimed the life of a Texas citizen named Peter Thibodeaux. The Administrator of his estate brought suit against the manufacturer of the vehicle, Defendant, a corporate citizen of Delaware and Washington.
Defendant filed a Notice of Removal (Doc. #1) on May 29, 2008. It argued that this Court has subject matter jurisdiction over the action pursuant to 28 U.S.C. § 1332(a). Defendant argued that the amount in controversy in the case exceeds $75,000 exclusive of interest and costs. Defendant acknowledged that the Complaint does not contain a specific damage request, but noted that Plaintiff sought damages allowable under Alabama's Wrongful Death Act in an amount to be determined by a jury. Defendant asserted that other Alabama courts have routinely entered wrongful death verdicts in excess of $75,000 in product liability claims. In support of this conclusion, Defendant listed numerous cases from various courts within Alabama that resulted in plaintiff's verdicts in wrongful death cases that exceeded $75,000. Defendant also offered evidence that it mailed Plaintiff an offer of judgment for $76,000 on June 23, 2008, which Plaintiff did not accept. Finally, Defendant argues generally that the nature of this case makes it obvious that the amount in controversy required for diversity jurisdiction must be exceeded.
Defendant argues Plaintiff's failure to accept an offer of judgment is evidence of the amount in controversy. The Court finds this argument unpersuasive. In limited circumstances, a district court may consider post-removal evidence in assessing removal jurisdiction. Sierminski v. Transourth Fin. Corp., 216 F.3d 945, 949 (11th Cir. 2000). However, a court may only consider the post-removal evidence in determining whether the jurisdictional amount was satisfied at the time of removal. Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001). Here, Defendant filed a Notice of Removal on May 29, 2008. It mailed Plaintiff an offer of judgment on June 23, 2008, almost a month later. Plaintiff's response, or non-response, does not provide evidence the amount of controversy on May 29, 2008. Furthermore, the Eleventh Circuit requires unambiguous evidence that a case is removable. Lowery v. Alabama Power Co., 483 F.3d 1184, 1219, n. 63 (11th Cir. 2007). Plaintiff's rejection of an offer of judgment is not unambiguous evidence that the amount in controversy exceeds $75,000.
DISCUSSION
Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994); Wymbs v. Republican State Executive Comm., 719 F.2d 1072, 1076 (11th Cir. 1983). As such, federal courts only have the power to hear cases that they have been authorized to hear by the Constitution or the Congress of the United States. Kokkonen, 511 U.S. at 377.Among the cases over which a federal district court may exercise subject matter jurisdiction are civil actions in which only state law claims are alleged if the civil action arises under the federal court's diversity jurisdiction. See 28 U.S.C. § 1332(a). The diversity statute confers jurisdiction on the federal courts in civil actions "between citizens of different states," in which the jurisdictional amount, currently in excess of $75,000, is met. Id.
When a case is originally filed in state court, a party may remove it if the case originally could have been brought in federal court. See 28 U.S.C. § 1441(a). Accord, Lowery v. Alabama Power Co., 483 F.3d 1184, 1207 (11th Cir. 2007) ("the party seeking a federal venue must establish the venue's jurisdictional requirements" and therefore removing defendants bear that burden in the context of a motion to remand). However, the non-moving party may move for remand, which will be granted if "it appears that the district court lacks subject matter jurisdiction." See 28 U.S.C. § 1447(c). Because removal jurisdiction raises significant federalism concerns, "removal statutes are construed narrowly; where plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of remand." Burns, 31 F.3d at 1095.
In Lowery v. Alabama Power Co., 483 F.3d 1184 (11th Cir. 2007), the Eleventh Circuit Court of Appeals held that in cases, such as this one, where the complaint does not specify the amount of damages sought, "the removing party bears burden of establishing the jurisdictional amount by a preponderance of the evidence." Id at 1208-09, 1210. The Court cautioned, however, that "[i]f the jurisdictional amount is either stated clearly on the face of the documents before the court, or readily deducible from them, then the court has jurisdiction. If not, the court must remand. Under this approach, jurisdiction is either evident from the removing documents or remand is appropriate." Id. at 1215. Neither the defendant nor the court may speculate about the amount in controversy. Id. (stating that "the existence of jurisdiction" may not be "divined by looking to the stars"). In addition, the Lowery court specifically rejected a removing defendant's attempt to satisfy its burden of proving amount in controversy by reliance on jury verdicts in other supposedly similar cases. Id. at 1189, 1220-21. Other district courts have also held that the nature of a claim in of itself is not sufficient to conclusively establish the amount in controversy. See Yates v. Medronic, No. CA 08-0337-KD-C, 2008 WL 4016599, at *11 (S.D. Ala. Aug. 26, 2008) (rejecting Alabama wrongful death product liability cases cited by defendants as improper evidence under Lowery of jurisdictional amount); Spivey v. Fred's, Inc., 554 F. Supp. 2d. 1271, 1274 (M.D. Ala. 2008) (recognizing that Lowery narrowed the scope of evidence a court may considering in its jurisdictional inquiry); Moore v. N. Am. Sports, Inc., No. 5:08-CV-343, 2008 WL 5157502, at *2 (N.D. Fla. 2008) (stating that "the nature of the [wrongful death] claim is insufficient to conclusively establish the amount in controversy"). In Siniard v. Ford Motor Co., 554 F. Supp. 2d 1276, 1279 (M.D. Ala. 2008), this Court found under Lowery that evidence other Alabama courts have entered wrongful death verdicts in excess of $75,000 in product liability claims was insufficient to establish the jurisdictional amount.
Here, Defendant argues that the amount in controversy in this case exceeds $75,000 exclusive of interests and costs because Plaintiff is seeking damages under Alabama's Wrongful Death Act in an amount determined by a jury. Under Lowery, a removing defendant may not prove amount in controversy by relying upon jury verdicts in similar cases. Furthermore, the measure of damages in an Alabama wrongful death claim is not the value of human life but rather the wrongfulness of the defendant's conduct. See Al. Pattern Jury Instructions Civil § 11.18 (2007) (stating that in a wrongful death case "the amount of damages should be directly related to the amount of wrongdoing on the part of the defendant. In assessing damages, [the jury] is not to consider the monetary value of the life of the decedent.") (emphasis added). The only damages recoverable, therefore, are those related to the defendant's conduct and culpability. There is no evidence of Defendant's culpability before the Court. Because Defendant has not satisfied by a preponderance of the evidence that the jurisdictional amount has been met, the Court must grant Plaintiff's motion and remand the case back to state court.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED as follows:
(1) Plaintiff's Motion to Remand (Doc. #10) is GRANTED;
(2) This case is REMANDED to the Circuit Court of Macon County, Alabama;
(3) The Clerk is DIRECTED to take appropriate steps to effect the remand;
(4) All motions other than the Motion to Remand are left for resolution by the Circuit Court of Macon County after remand.A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST 1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 486 U.S. 196 201 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. 890 F.2d 371 376 Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4 Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , , , , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , , (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).